Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty,
2014
Osgoode Hall Law School of York University
Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco
Articles & Book Chapters
Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook …
Considering Patricia Millett For The D.C. Circuit,
2014
University of Richmond
Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias
Law Faculty Publications
On June 4, Obama nominated three individuals: Patricia Millett, who has argued 32 Supreme Court appeals, Cornelia Pillard, who has won landmark High Court victories, and Robert Wilkins, who had served as a D.C. District Court judge for three years. The court’s allegedly smaller caseloads prompted Republicans to halt yes or no votes for all the nominees. But because well-qualified, moderate nominees warrant thorough consideration and final ballots, their Senate review deserves analysis, which this paper conducts by emphasizing Millett. It first surveys the nominee’s process and then shows how her evaluation concluded.
On Creativity In Constitutional Interpretation,
2014
University of Colorado Law School
On Creativity In Constitutional Interpretation, Pierre Schlag
Publications
In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …
The Judge And The Drone,
2014
University of Colorado Law School
The Judge And The Drone, Justin Deystone
Publications
Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …
Machine Learning And Law,
2014
University of Colorado Law School
Machine Learning And Law, Harry Surden
Publications
This Article explores the application of machine learning techniques within the practice of law. Broadly speaking “machine learning” refers to computer algorithms that have the ability to “learn” or improve in performance over time on some task. In general, machine learning algorithms are designed to detect patterns in data and then apply these patterns going forward to new data in order to automate particular tasks. Outside of law, machine learning techniques have been successfully applied to automate tasks that were once thought to necessitate human intelligence — for example language translation, fraud-detection, driving automobiles, facial recognition, and data-mining. If performing …
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,
2014
University of Richmond
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh
Law Faculty Publications
Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …
Decorating The Structure: The Art Of Making Human Law,
2014
University of Oklahoma College of Law
Decorating The Structure: The Art Of Making Human Law, Brian Mccall
Faculty Articles
This article continues to develop the theme of law as architecture begun in two published articles, The Architecture of Law: Building Law on a Solid Foundation, the Eternal and Natural Law and Consulting the Architect when Problems Arise: The Divine Law. Having considered the foundation and framework of human law, this article turns to the decoration of the structure through the craft of human law making. It examines the process whereby the natural law is determined in particular political communities. Human law is the craft of particularizing the general principles of natural law in a community’s laws. It relies on …
An Empirical Method For Harmless Error,
2014
Boston University School of Law
An Empirical Method For Harmless Error, D. Alex Winkelman, David V. Yokum, Lisette C. Cole, Shelby C. Thompson, Christopher Robertson
Faculty Scholarship
Trials are often imperfect. When inadmissible evidence is introduced or the jury is incorrectly instructed, judges must determine whether the error was prejudicial or merely harmless. In making that assessment, judges resort to speculation about the counterfactual question of whether the error changed the outcome, compared to the decision of a properly informed and instructed jury. These decisions are likely colored by confirmation and status quo biases, along with “mental contamination” of the error itself. Even when appellate judges perform these analyses accurately, their decisions appear conclusory. Scholars and judges have roundly criticized this doctrine, but no solution has emerged. …
Issue 2: Table Of Contents,
2014
University of Richmond
Brief For Amici Curiae Professors Of Law In Support Of Petitioner,
2014
Duke Law School
Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Neil Vidmar, Lisa Kern Griffin
Faculty Scholarship
No abstract provided.
Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor,
2014
Western New England University School of Law
Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay
Faculty Scholarship
No abstract provided.
Foreword: The Confident Court,
2014
Notre Dame Law School
Foreword: The Confident Court, Jennifer Mason Mcaward
Journal Articles
Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada,
2014
Osgoode Hall Law School of York University
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Osgoode Hall Law Journal
This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …
The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory,
2014
University of Richmond
The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash
Law Faculty Publications
The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …
The Judges Of The U.S. Judicial Panel On Multidistrict Litigation,
2014
Vanderbilt University Law School
The Judges Of The U.S. Judicial Panel On Multidistrict Litigation, Tracey E. George, Margaret S. Williams
Vanderbilt Law School Faculty Publications
The United States Judicial Panel on Multidistrict Litigation (or "MDL Panel") is one of a small number of special federal courts created pursuant to Article III by Congress and staffed by a Chief-Justice-appointed group of Article III judges for limited terms. The MDL Panel is a powerful judicial institution with substantial discretion over complex litigation in the United States. For all practical purposes, it controls where many of the most far-reaching and significant private civil actions will be resolved which can affect procedural and substantive rights of the parties. An understanding of who has served on the MDL Panel would …
Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System,
2014
University of Colorado Law School
Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain
Publications
No abstract provided.
The Role Of Law, Judicial Reform And The Protection Of Human Rights In Moldova And Transnistria,
2014
University of South Florida
The Role Of Law, Judicial Reform And The Protection Of Human Rights In Moldova And Transnistria, Judithanne Scourfield Mclauchlan
Intercultural Human Rights Law Review
This article will provide an overview of human rights violations in Transnistria, with an emphasis on the cases brought before the European Court of Human Rights. The role of human rights NGOs (such as Promo-LEX), reform-minded civil society, and the influence of the Russian Federation and the Republic of Moldova in the PMR will be explored. The current situation will be analyzed in the context of the resumption of the 5+2 negotiation, as well as the major judicial reform effort (the Strategy for Justice Sector Reform, 2011-2015) that the governing coalition in Moldova, formerly the "Alliance for European Integration" and …
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,,
2014
The Catholic University of America, Columbus School of Law
Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,, Kevin C. Walsh, Marc O. Degirolami
Scholarly Articles
Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …
Filling The District Of Arizona Vacancies,
2014
University of Richmond
Filling The District Of Arizona Vacancies, Carl W. Tobias
Law Faculty Publications
The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …
Bond V. United States: Concurring In The Judgment,
2014
Georgetown University Law Center
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Georgetown Law Faculty Publications and Other Works
Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.
